Article 134. Scope
This Sub-section sets out the principles regarding the liberalisation of transport services pursuant to Sections 2, 3 and 4 of this Chapter.
Article 135. International Maritime Transport
1. This Agreement applies to international maritime transport between the ports of Ukraine and of the Member States of the European Union and between the ports of the Member States of the European Union. It also applies to trades between the ports of Ukraine and third countries and between the ports of the Member States of the European Union and third countries.
2. This Agreement shall not apply to domestic maritime transport between the ports of Ukraine or between the ports of individual Member States of the European Union. Notwithstanding the previous sentence, the movement of equipment, such as empty containers, not being carried as cargo against payment between the ports of Ukraine or between the ports of individual Member States of the European Union shall be regarded as a part of international maritime transport.
3. For the purposes of this Sub-section and Sections 2, 3 and 4 of this Chapter:
(a) "international maritime transport" includes door to door and multi-modal transport operations, which is the carriage of goods using more than one mode of transport, involving a sea-leg, under a single transport document, and to this effect direct contracting with providers of other modes of transport;
(b) "maritime cargo handling services" means activities exercised by stevedore companies, including terminal operators, but not including the direct activities of dockers, when this workforce is organised independently of the stevedoring or terminal operator companies. The activities covered include the organisation and supervision of:
(i) the loading/discharging of cargo to/from a ship;
(ii) the lashing/unlashing of cargo;
(iii) the reception/delivery and safekeeping of cargoes before shipment or after discharge;
(c) "customs clearance services" (alternatively "customs house brokers' services") means activities consisting in carrying out on behalf of another party customs formalities concerning import, export or through transport of cargoes, whether this service is the main activity of the service provider or a usual complement of its main activity;
(d) "container station and depot services" means activities consisting in storing containers, whether in port areas or inland, with a view to their stuffing/stripping, repairing and making them available for shipments;
(e) "maritime agency services" means activities consisting in representing, within a given geographic area, as an agent the business interests of one or more shipping lines or shipping companies, for the following purposes:
(i) marketing and sales of maritime transport and related services, from quotation to invoicing, and issuance of bills of lading on behalf of the companies, acquisition and resale of the necessary related services, preparation of documentation, and provision of business information;
(ii) acting on behalf of the companies organising the call of the ship or taking over cargoes when required.
(f) "freight forwarding services" means the activity consisting of organising and monitoring shipment operations on behalf of shippers, through the acquisition of transport and related services, preparation of documentation and provision of business information.
(g) "feeder services" means the pre- and onward transport of international cargoes by sea, in particular containerised, between ports located in a Party.
4. Each Party shall grant to vessels flying the flag of the other Party or operated by service suppliers of the other Party treatment no less favourable than that accorded to its own vessels, or those of any third country, whichever are the better, with regard to, inter alia, access to ports, the use of infrastructure and services of ports, and the use of maritime auxiliary services (1), as well as related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
5. The Parties shall apply effectively the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis.
6. In applying the principles of paragraphs 4 and 5 of this Article, the Parties shall, upon entry into force of this Agreement:
(a) not introduce cargo sharing arrangements in future agreements with third countries concerning maritime transport services, including dry and liquid bulk and liner trade, and terminate such cargo sharing arrangements in the case they exist in previous agreements; and
(b) abolish or abstain from implementing any administrative, technical, or other measures, which could constitute an indirect restriction and have discriminatory effects against nationals or companies of the other Party in the supply of services in international maritime transport.
7. Each Party shall permit international maritime transport service suppliers of the other Party to have establishments in its territory under conditions of establishment and operation no less favourable than those accorded to its own service suppliers or those of any third country, whichever are the better. In accordance with the provisions of Section 2 of this Chapter, in respect of the activities of such establishments, each Party shall permit the service suppliers of the other Party, in accordance with its laws and regulations, to engage in economic activities, such as, but not limited to:
(a) publishing, marketing and sales of maritime transport and related services, from quotation to invoicing, on their own account or on behalf of other service suppliers of international maritime transport, through direct contact with customers;
(b) provision of business information by any means, including computerised information systems and electronic data interchange (subject to any non-discriminatory restrictions concerning telecommunications);
(c) preparation of documentation concerning transport and customs and other documents related to the origin and character of what is being transported;
(d) organising the call of vessels or taking delivery of cargoes on their own account or on behalf of other service suppliers of international maritime transport;
(e) setting up of any business arrangement with any locally established shipping agency, including participation in the company's stock and the appointment of personnel recruited locally or recruited from abroad subject to the relevant provisions of this Agreement;
(f) purchase and use, on their own account or on behalf of their customers (and the resale to their customers), of transport services by all modes, including inland waterways, road and rail, and services auxiliary to all modes of transport, necessary for the supply of an integrated transport service;
(g) owning the equipment necessary for conducting economic activities.
8. Each Party shall make available to service suppliers of international maritime transport of the other Party on reasonable and non-discriminatory terms and conditions the following services at the port: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast waste disposal, port captain's services, navigation aids, shore-based operational services essential to ship operations, including communications, water and electrical supplies, emergency repair facilities, anchorage, berth and berthing services.
9. Each Party shall allow services suppliers of international maritime transport of the other Party to provide international maritime transport services involving a sea-leg in the inland waterways of the other Party.
10. Each Party shall allow services suppliers of international maritime transport of the other Party to have use of, on a non-discriminatory basis and on agreed terms between the companies concerned, feeder services between the ports of Ukraine or between the ports of individual Member States of the European Union that are provided by the service suppliers of maritime transport registered in the former Party.
11. This Agreement shall not affect the application of the maritime agreements concluded between Ukraine and the Member States of the European Union for issues falling outside the scope of this Agreement. If this Agreement is less favourable on certain issues than existing agreements between individual Member States of the European Union and Ukraine, the more favourable provisions shall prevail without prejudice to EU Party obligations and taking into account the Treaty on the Functioning of the European Union. The provisions of this Agreement replace those of previous bilateral agreements concluded between Member States of the European Union and Ukraine, if the latter provisions are either inconsistent with the former except for the situation referred to in the preceding sentence, or identical to them. Provisions of existing bilateral agreements not covered by this Agreement shall continue to apply.
Article 136. Road, Rail and Inland Waterways Transport
1. With a view to assuring a coordinated development and progressive liberalisation of transport between the Parties adapted to their reciprocal commercial needs, the conditions of mutual market access in road, rail and inland waterways transport shall be dealt with by possible future special road, rail and inland waterways transport agreements.
2. Prior to the conclusion of the agreements referred to in paragraph 1 of this Article, the Parties shall not render the conditions of mutual market access more restrictive between the Parties as compared to the situation existing on the day preceding the day of entry into force of this Agreement.
3. The provisions of existing bilateral agreements which are not covered by future possible agreements referred to in paragraph 1 of this Article shall continue to apply.
Article 137. Air Transport
1. With a view to ensuring a coordinated development and progressive liberalisation of transport between the Parties adapted to their reciprocal commercial needs, the conditions of mutual market access in air transport should be dealt in accordance with the EU- Ukraine Common Aviation Area Agreement (hereinafter referred to as the "CAA").
2. Prior to the conclusion of the CAA, the Parties shall not take any measures or actions which are more restrictive or discriminatory as compared with the situation existing prior to the entry into force of this Agreement.
Article 138. Regulatory Approximation
Ukraine shall adapt its legislation, including administrative, technical and other rules, to that of the EU Party existing at any time in the field of international maritime transport insofar as it serves to achieve the objectives of liberalisation, mutual access to the markets of the Parties, and the movement of passengers and of goods. This approximation will start on the date of signing of the Agreement, and will gradually extend to all the elements of the EU acquis referred to in Annex XVII to this Agreement.
Section 6. Electronic Commerce
Article 139. Objective and Principles
1. The Parties, recognising that electronic commerce increases trade opportunities in many sectors, agree to promote the development of electronic commerce between them, in particular by co-operating on the issues raised by electronic commerce under the provisions of this Chapter.
2. The Parties agree that the development of electronic commerce must be fully compatible with the highest international standards of data protection, in order to ensure the confidence of users of electronic commerce.
3. The Parties agree that electronic transmissions shall be considered as the provision of services, within the meaning of Section 3 (Cross-border supply of services) of this Chapter, which cannot be subject to customs duties.
Article 140. Regulatory Aspects of Electronic Commerce
1. The Parties shall Maintain a dialogue on regulatory issues raised by electronic commerce, which will inter alia address the following issues:
(a) the recognition of certificates of electronic signatures issued to the public and the facilitation of cross-border certification services,
(b) the liability of intermediary service providers with respect to the transmission or storage of information,
(c) the treatment of unsolicited electronic commercial communications,
(d) the protection of consumers within the ambit of electronic commerce,
(e) any other issue relevant to the development of electronic commerce.
2. Such cooperation can take the form of exchange of information on the Parties' respective legislation on these issues as well as on the implementation of such legislation.
Section 7. Exceptions
Article 141. General Exceptions
1. Without prejudice to general exceptions set out in Articles 472 of this Agreement, the provisions of this Chapter and of Annexes XVI-A, XVI-B, XVI-C, XVI-D, XVI-E, XVI-F and XVII to this Agreement are subject to the exceptions contained in this Article.
2. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on establishment or cross-border supply of services, nothing in this Chapter shall be construed in such a way as to prevent the adoption or enforcement by any Party of measures:
(a) necessary to protect public security or public morals or to maintain public order;
(b) necessary to protect human, animal or plant life or health;
(c) relating to the conservation of exhaustible natural resources if such measures are applied in conjunction with restrictions on domestic investors or on the domestic supply or consumption of services;
(d) necessary for the protection of national treasures of artistic, historic or archaeological value;
(e) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter including those relating to:
(i) the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety.
(f) inconsistent with Article 88(1) and Article 94 of this Agreement, provided that the difference in treatment is aimed at ensuring the effective or equitable imposition or collection of direct taxes in respect of economic activities, investors or services suppliers of the other Party (1).
3. The provisions of this Chapter and of Annexes XVI-A, XVI-B, XVI-C, XVI-D, XVI-E, XVI-F and XVII to this Agreement shall not apply to the Parties' respective social security systems or to activities in the territory of each Party, which are connected, even occasionally, with the exercise of official authority.
Article 142. Taxation Measures
The MFN treatment granted in accordance with the provisions of this Chapter shall not apply to the tax treatment that Parties are providing or will provide in future on the basis of agreements between the Parties designed to avoid double taxation.
(i) apply to non-resident investors and service suppliers in recognition of the fact that the tax obligation of non-residents is determined with respect to taxable items sourced or located in the Party's territory; or
(ii) apply to non-residents in order to ensure the imposition or collection of taxes in the Party's territory; or
(iii) apply to non-residents or residents in order to prevent the avoidance or evasion of taxes, including compliance measures; or
(iv) apply to consumers of services supplied in or from the territory of another Party in order to ensure the imposition or collection of taxes on such consumers derived from sources in the Party's territory; or
(v) distinguish investors and service suppliers subject to tax on worldwide taxable items from other investors and service suppliers, in recognition of the difference in the nature of the tax base between them; or
(vi) determine, allocate or apportion income, profit, gain, loss, deduction or credit of resident persons or branches, or between related persons or branches of the same person, in order to safeguard the Party's tax base.
Tax terms or concepts in paragraph (f) of this provision and in this footnote
are determined according to tax definitions and concepts, or equivalent or similar definitions and concepts, under the domestic law of the Party taking the measure.
Article 143. Security Exceptions
1. Nothing in this Agreement shall be construed in such a way as:
(a) to require any Party to furnish any information, the disclosure of which it considers contrary to its essential security interests; or
(b) to prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) connected with the production of or trade in arms, munitions or war material;
(ii) relating to economic activities carried out directly or indirectly for the purpose of provisioning a military establishment;
(iii) relating to fissionable and fusionable materials or the materials from which they are derived; or
(iv) taken in time of war or other emergency in international relations; or
(c) to prevent any Party from taking any action in pursuance of obligations it has accepted for the purpose of maintaining international peace and security.
Chapter 7. Current Payments and Movement of Capital
Article 144. Current Payments
The Parties undertake to impose no restrictions and shall allow, in freely convertible currency, in accordance with the provisions of Article VIII of the Articles of the Agreement of the IMF, any payments and transfers on the current account of balance of payments between the Parties.
Article 145. Capital Movements
1. With regard to transactions on the capital and financial account of balance of payments, from the entry into force of this Agreement, the Parties shall ensure the free movement of capital relating to direct investments (1) made in accordance with the laws of the host country, to investments made in accordance with the provisions of Chapter 6 (Establishment, Trade in Services and Electronic Commerce) of Title IV of this Agreement and to the liquidation or repatriation of such invested capitals and of any profit stemming therefrom.
2. With regard to other transactions on the capital and financial account of balance of payments, from the entry into force of this Agreement and without prejudice to other provisions of this Agreement the Parties shall ensure:
(a) the free movement of capital relating to credits related to commercial transactions or to the provision of services in which a resident of one of the Parties is participating;
(b) the free movement of capital relating to portfolio investments and financial loans and credits by the investors of the other Party.
3. Ukraine undertakes to complete the liberalisation of transactions on the capital and financial account of balance of payments equivalent to the liberalisation in the EU Party prior to the granting of internal market treatment in the area of financial services under Article 4(3) of Annex XVII to this Agreement. A positive assessment of the Ukrainian legislation on capital movements, its implementation and continued enforcement conducted in line with the principles outlined in Article 4(3) of Annex XVII to this Agreement is a necessary precondition of any decision by the Trade Committee to grant internal market treatment with respect to financial services.
4. Without prejudice to other provisions of this Agreement, the Parties shall not introduce any new restrictions on the movement of capital and current payments between residents of the EU Party and Ukraine and shall not make the existing arrangements more restrictive.
Article 146. Safeguard Measures
Without prejudice to other provisions of this Agreement, where, in exceptional circumstances, payments or movements of capital between the Parties cause, or threaten to cause, serious difficulties for the operation of exchange rate policy or monetary policy (1) in one or more Member States of the European Union or Ukraine, the Parties concerned may take safeguard measures with regard to movements of capital between the EU Party and Ukraine for a period not exceeding six months if such measures are strictly necessary. The Party adopting the safeguard measure shall inform the other Party forthwith of the adoption of such measure and shall present, as soon as possible, a schedule for its removal.
Article 147. Facilitation and Further Liberalization Provisions
1. The Parties shall consult each other with a view to facilitating the movement of capital between the Parties in order to promote the objectives of this Agreement.
2. During the first four years following the date of entry into force of this Agreement, the Parties shall take measures permitting the creation of the necessary conditions for the further gradual application of EU Party rules on the free movement of capital.
3. By the end of the fifth year following the date of entry into force of this Agreement, the Trade Committee shall review the measures taken and shall determine the modalities for further liberalisation.
Chapter 8. Public Procurement
Article 148. Objectives
The Parties recognise the contribution of transparent, non-discriminatory, competitive and open tendering to sustainable economic development and set as their objective the effective, reciprocal and gradual opening of their respective procurement markets.
This Chapter envisages mutual access to public procurement markets on the basis of the principle of national treatment at national, regional and local level for public contracts and concessions in the traditional sector as well as in the utilities sector. It provides for the progressive approximation of the public procurement legislation in Ukraine with the EU public procurement acquis, accompanied with an institutional reform and the creation of an efficient public procurement system based on the principles governing public procurement in the EU Party and the terms and definitions set out in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (hereinafter referred to as "Directive 2004/18/EC") and Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (hereinafter referred to as "Directive 2004/17/EC").
Article 149. Scope
1. This Chapter applies to works, supplies and services public contracts, as well as works, supplies and services contracts in the utilities sectors and works and services concessions.
2. This Chapter applies to any contracting authority and any contracting entity which meets the definitions of the EU public procurement acquis (hereinafter both referred to as the "contracting entities"). It covers also bodies governed by public law and public undertakings in the field of utilities such as state-owned enterprises carrying out the relevant activities and private undertakings operating on the basis of special and exclusive rights in the field of utilities.
3. This Chapter applies to contracts above value thresholds set out in Annex XXI-P:
The calculation of the estimated value of a public contract shall be based on the total amount payable, net of Value Added Tax. When applying these thresholds, Ukraine will calculate and convert these values into its own national currency, using the exchange rate of its National Bank.
These value thresholds shall be revised regularly every two years, beginning in the first even year following the entry into force of the Agreement, based on the average daily value of the Euro, expressed in Special Drawing Rights, over the 24 months terminating on the last day of August preceding the revision with effect from January 1. The value of the thresholds thus revised shall, where necessary, be rounded down to nearest thousand Euro. The revision of the thresholds shall be adopted by the Trade Committee according to the procedure defined in Title VII (Institutional General and Final Provisions) of this Agreement.
Article 150. Institutional Background
1. The Parties shall establish or maintain an appropriate institutional framework and mechanisms necessary for the proper functioning of the public procurement system and the implementation of the relevant principles.
2. In the framework of the institutional reform, Ukraine shall designate in particular:
(a) a central executive body responsible for economic policy tasked with guaranteeing a coherent policy in all areas related to public procurement. Such a body shall facilitate and coordinate the implementation of this Chapter and guide the process of legislative approximation
(b) an impartial and independent body tasked with the review of decisions taken by contracting authorities or entities during the award of contracts. In this context, "independent" means that that body shall be a public authority which is separate from all contracting entities and economic operators. There shall be a possibility to subject the decisions taken by this body to judicial review.
3. The Parties shall ensure that decisions taken by the authorities responsible for the review of complaints shall be effectively enforced.
Article 151. Basic Standards Regulating the Award of Contracts
1. No later than six months from the entry into force of this Agreement, the Parties shall comply with a set of basic standards for the award of all contracts as stipulated in paragraphs 2 to 15 of this Article. These basic standards derive directly from the rules and principles of public procurement, as regulated in the EU public procurement acquis, including the principles of non-discrimination, equal treatment, transparency and proportionality.
Publication
2. The Parties shall ensure that all intended procurements are published in an appropriate media in a manner that is sufficient:
(a) to enable the market to be opened up to competition; and
(b) to allow any interested economic operator to have appropriate access to information regarding the intended procurement prior to the award of the contract and to express its interest in obtaining the contract.
3. The publication shall be appropriate to the economic interest of the contract to economic operators.
4. The publication shall contain at least the essential details of the contract to be awarded, the criteria for qualitative selection, the award method, the contract award criteria and any other additional information that the economic operators reasonably need to make a decision on whether to express their interest in obtaining the contract.
Award of contracts
5. All contracts shall be awarded through transparent and impartial award procedures that prevent corruptive practices. This impartiality shall be ensured especially through the non-discriminatory description of the subject-matter of the contract, equal access for all economic operators, appropriate time-limits and a transparent and objective approach.
6. When describing the characteristics of the required work, supply or service, the contracting entities shall use general descriptions of performance and functions and international, European or national standards.
7. The description of the characteristics required of a work, supply or service should not refer to a specific make or source, or a particular process, or to trade-marks, patents, types or a specific origin or production unless such a reference is justified by the subject-matter of the contract and accompanied by the words "or equivalent". Preference shall be given to the use of general descriptions of performance or functions.
8. Contracting entities shall not impose conditions resulting in direct or indirect discrimination against the economic operators of the other Party, such as the requirement that economic operators interested in the contract must be established in the same country, region or territory as the contracting entity.
Notwithstanding the above, in cases where it is justified by the specific circumstances of the contract, the successful applicant may be required to establish certain business infrastructure at the place of performance.
9. The time-limits for expression of interest and for submission of offers shall be sufficiently long to allow economic operators from the other Party to make a meaningful assessment of the tender and prepare their offer.
10. All participants must be able to know the applicable rules, selection criteria and award criteria in advance. These rules must apply equally to all participants.
11. Contracting entities may invite a limited number of applicants to submit an offer, provided that:
(a) this is done in a transparent and non-discriminatory manner; and
(b) the selection is based only on objective factors such as the experience of the applicants in the sector concerned, the size and infrastructure of their businesses or their technical and professional abilities.
In inviting a limited number of applicants to submit an offer, account should be taken of the need to ensure adequate competition.
12. Contracting entities may use negotiated procedures only in exceptional defined cases when the use of such a procedure effectively does not distort competition.
13. Contracting entities may use qualification systems only on condition that the list of qualified operators is compiled by means of a sufficiently advertised, transparent and open procedure. Contracts falling within the scope of such systems shall be awarded also on a non-discriminatory basis.
14. The Parties shall ensure that contracts are awarded in a transparent manner to the applicant who has submitted the economically most advantageous offer or the offer with the lowest price, based on the tender criteria and the procedural rules established and communicated in advance. The final decisions are to be communicated to all applicants without undue delay. Upon request of an unsuccessful applicant, reasons must be provided in sufficient detail to allow a review of the decision.
Judicial protection